Anti-Corruption 2019 Second Edition

Last Updated December 09, 2019

Belgium

Law and Practice

Authors



Linklaters regularly acts on the most significant regulatory and criminal investigations and related civil disputes in the world. The firm provides strategic legal advice on sensitive matters involving anti-bribery and corruption, anti-money laundering, business crimes, fraud, export controls and sanctions, and other related issues. With 30 offices across the world, Linklaters is especially well-equipped to address the most challenging cross-border internal investigations, leveraging the firm's ability to draw upon large multi-disciplinary and multi-jurisdictional teams at short notice. The firm's collaborative international teams have represented clients before criminal authorities and regulators across multiple jurisdictions and in a wide variety of fields. Linklaters has excellent insight into relevant prosecutors and authorities. A number of the firm's lawyers have previously held senior positions at national regulators. Recent work involved assisting several Swiss and Luxembourg banks in their defence against criminal charges based on tax fraud. The firm has also advised board members of a listed company in France, Belgium and the US about potential payments to terrorist groups and alleged violations of international embargoes.

Belgium has entered into a variety of international conventions relating to anti-bribery and anti-corruption. The most significant ones are listed below:

  • the European Union Convention of 26 May 1997 on the fight against corruption involving officials of the European Communities or officials of Member States;
  • the Council of Europe Criminal Law Convention of 27 January 1999 on Corruption;
  • the additional protocol to the Council of Europe Criminal Law Convention of 15 May 2003 on Corruption;
  • the Council of Europe Civil Law Convention of 4 November 1999 on Corruption;
  • the OECD Convention of 17 December 1997 on Combating Bribery of Foreign Public Officials in International Business Transactions;
  • the United Nations Convention of 31 October 2003 against Corruption.

The above-mentioned international conventions have (either directly or indirectly) profoundly affected Belgian national legislation in relation to anti-bribery and anti-corruption. 

There is no clear-cut legal difference in Belgium between the terms "bribery" and "corruption". Whereas corruption can be considered to be a broader and general notion (which encompasses the offence of bribery), the notions "corruption" and "bribery" are often used in an interchangeable way in Belgian criminal law. In what follows, for the purposes of this contribution the notion of bribery is only referred to if it specifically relates to the offences identified under the heading of Bribery in 1.2Classification and Constituent Elements. The notion of corruption refers to all offences included under 1.2 Classification and Constituent Elements.

Both public and private bribery in their active and passive forms are unlawful under Belgian criminal law. The relevant provisions on bribery can be found in the Belgian Criminal Code (BCC). In particular, the offence of public bribery (ie, bribery of public officials) is addressed in Articles 246 to 253 of the BCC. Private bribery is addressed in Articles 504bis to 504ter of the BCC.

Other provisions on corruption are spread throughout the Belgian Criminal Code. Articles 240 to 245, 250 and 254 of the BCC, for example, contain various corruption-related offences that are typically committed by public officials. These articles more specifically target influence-peddling, embezzlement and misappropriation of funds, the disappearance of official documents, extortion and the illegitimate interest taking by public officials.

The proceeds of corruption might give rise to further money-laundering. The Belgian Act of 18 September 2017 on the prevention of money-laundering therefore specifically identifies corruption as a criminal activity that can result in money-laundering. As a consequence, if a targeted entity under the Act (which are mainly financial institutions) encounters a case of corruption, that entity will need to comply with several obligations in relation to the prevention of money-laundering.

For the interpretation of Belgian national rules on bribery and corruption, the parliamentary preparatory documents relating to these rules should be considered, and especially:

  • the draft bill of the Law of 10 February 1999 on the punishment of corruption;
  • the draft bill of the Law of 11 May 2007 amending the legislation on the fight against bribery;
  • the draft bill of the Law of 5 February 2016 amending criminal law and criminal procedural law and various provisions with respect to justice in general (all available online).

These draft bills address in particular the general rationale behind the national rules on public and private bribery. For public bribery, the purpose of criminalising corrupt practices is to protect the exercise of public authority and thereby to protect public policy and the normal functioning of the institutions in general. For private bribery, the objective is twofold: (i) to combat unfair practices that are likely to damage the internal organisation and reputation of companies and thereby destabilise the economic public order, and (ii) to prevent those criminal organisations from infiltrating legitimate businesses, possibly as a first step to the eventual bribery of public authorities.

In addition, Belgian governmental authorities have published brochures that primarily focus on non-compulsory preventive measures that companies should take against bribery and corruption. In the case of criminal prosecution, acting in accordance with the guidelines that are contained in these brochures can potentially help companies show that they have not acted in a wrongful or negligent manner. These brochures are available in French (https://justitie.belgium.be/sites/default/files/downloads/La%20corruption.pdf) and in Dutch (https://justitie.belgium.be/sites/default/files/downloads/Corruptie.pdf).

There is very little reliable guidance as to the enforcement of Belgian legislation in practice, given the limited available published case law about both foreign and domestic corrupt practices.

The most significant changes to the national legislation in relation to corruption date back to 1999. There have not been any major amendments to the legislation in the last couple of years (and in particular in 2019).

Bribery

Both public and private bribery in their active and passive forms are unlawful under Belgian criminal law. A Belgian criminal offence requires the presence of both a material and a moral element. The material element is the criminal conduct that one must commit and is further specified below for each of the offences of public and private bribery. The moral element is the required criminal intent of the perpetrator. Under Belgian law, criminal intent is satisfied when the perpetrator acted knowingly and intentionally.

Public bribery

  • Passive public bribery is the act of a public official – either directly or indirectly, either to the benefit of himself or herself or a third party – requesting, accepting or receiving an offer, promise or benefit of any kind, in exchange for performing, or refraining from performing, any act falling within the scope of his or her responsibilities (Article 246, §1 of the BCC).
  • Active public bribery consists in the proposal – either directly or indirectly, either to the benefit of himself or herself or a third party – of an offer, promise or advantage of any kind to a public official, to induce the latter to perform or refrain from performing any act falling within the scope of his or her responsibilities (Article 246, §2 of the BCC).

Active and passive public bribery are prohibited when they are intended to (i) have a public official perform, within the scope of his or her responsibilities, a lawful act which is otherwise not subject to payment, (ii) have a public official perform, within the scope of his/her responsibilities, an unlawful act or omission of his or her duties, (iii) have a public official commit a crime or malpractice in connection with the performance of his or her duties, and (iv) have a public official using his or her true or alleged influence which he or she has by virtue of his or her function to obtain an act of a public authority or administration or the omission of such act.

The notion "public official" must be interpreted in a broad and functional way. Public officials are first those formally holding public office. This traditionally includes, for example, public servants at the federal, regional or municipal levels, elected representatives and members of the police, military or judicial orders. It also includes persons holding public office in a foreign state or in an international organisation, which leads to higher criminal penalties. It is, however, not a person’s status but rather their function that will eventually determine whether he or she is to be considered as a public official. Pursuant to the preparatory parliamentary documents, any person, even a private person, that is entrusted with a “public service mission” is to be considered a public official. According to case law, a “public service mission” is “an activity of general interest”. The latter is a rather vague notion and the courts will have to apply this criterion on a case-by-case basis. Persons entrusted with a public service mission could potentially include representatives of public hospitals or public education institutions.

The Belgian Criminal Code explicitly assimilates the following three categories of persons to public officials: (i) persons applying for public office, (ii) persons promising or pretending that they will hold public office, and (iii) persons who knowingly lie when promising or pretending that they will hold public office (Article 246, §3 of the BCC). The first two categories are intended to punish bribery from the very outset. The persons of the third category will often also be prosecuted for the criminal offence of fraud or swindling.

An offer, promise or benefit of any kind must be made to or proposed by the public official. The notions of “offer, promise or advantage of any kind” allow for a broad interpretation. They cover donations, gifts, discounts and grants in their broadest forms. Examples considered by case law comprise the offering of free trips or outings, hospitality expenditures, the cancellation of debts and the payment of monthly interests. The monetary value or the number of gifts and discounts are, in principle, irrelevant. However, not all gifts or presents give rise to bribery. A case-by-case analysis will therefore be required to assess whether (the amount/number of) the gifts or presents are sufficient eventually to lead a public official to act. It is not even required that the offers, promises or benefits be of a patrimonial or pecuniary nature. In a famous case dealt with by the Belgian Supreme Court (judgment of 25 March 1957), a police officer was condemned for bribery as he deliberately closed his eyes to criminal behaviour in a local pub as long as he could have sexual intercourse with the barmaid.

Unilateral acts of bribery are already punishable under Belgian criminal law. It is not required that an “agreement” be reached between the person proposing the bribe and the public official. The mere request or receipt, proposal or granting is thus sufficient to constitute a criminal offence. Hence, the offence of passive bribery can be the result of a public official unilaterally asking for a bribe. Active bribery, on the other hand, can be established if a person offers or grants a bribe to a public official in order to induce the latter to act or refrain to act in a certain preferred way. The existence of an agreement between both persons involved will, however, constitute an aggravating circumstance.

Private bribery

  • Passive private bribery consists in soliciting or accepting an offer, a promise or an advantage of any kind by a person who is the director of a corporate entity, or the agent or employee of a corporate entity or physical person, directly or indirectly, for that person’s benefit or for the benefit of a third party, with a view to committing or not committing an act linked to or facilitated by that person’s position, without the knowledge of or authorisation from – depending on the circumstances – the board of directors, the general assembly of shareholders, the principal or the employer (Article 504bis, §1 of the BCC).
  • Active private bribery consists in directly or indirectly offering, promising or giving an advantage of any kind to a person who is the director of a corporate entity or the agent or employee of a corporate entity or physical person, for that person’s benefit or for the benefit of a third party, for the purpose of influencing that person to commit or not commit an act linked to or facilitated by that person’s position, without the knowledge of or authorisation from – depending on the circumstances – the board of directors, the general assembly of shareholders, the principal or the employer (Article 504bis, §2 of the BCC).

Private bribery targets any individual who has a certain function or holds a position in a legal person or for a physical person. It is not required that such an individual has entered into an employment contract; he or she can also act as a self-employed person for his or her principal. It is also not required that the director, agent or employee act in the framework of a professional activity. The offences of private bribery can also apply if a person, for instance, acts in his or her spare time for a (professional or amateur) sports or cultural organisation.

Through private bribery, a person is convinced to commit or to refrain from committing an act linked to or facilitated by that person’s position. The victim of acts of private bribery is essentially the company or the employer, whose representative (director/agent/employee) has acted in his or her personal interest, rather than in the interest of the company or employer. Various examples have been given in the parliamentary documents: a procurement manager of a supermarket chain taking the decision to include a certain product in its product range in exchange for free tickets for the world cup football final; a manager sharing confidential information with a competitor in exchange for a bribe; a sports referee who consciously ignores the fouls committed by the team that bribed him or her, etc.

It is, however, common for customers and suppliers to make certain offers or promises or grant advantages to one another in a competitive economic context. It is why the legislator added the condition that the solicitation, acceptance, offering, promising or giving of an advantage must happen "without the knowledge of or authorisation from" the board of directors, the general assembly of shareholders, the principal or the employer. In other words, once the company or the employer has been made aware of the gifts, presents or advantages offered to its representative, that company or employer is no longer deemed to be affected.

There is no de minimis threshold. However, large corporations usually post on their website their internal policies concerning the maximum value of gifts that can be offered/accepted without any prior authorisation.

As is the case for public bribery, unilateral acts of private bribery are punishable under Belgian law. Hence, the mere request or receipt, proposal or granting is sufficient to constitute a criminal offence. It is not required that an agreement be ultimately reached between the person offering and the person accepting the bribe. Such an agreement will, however, constitute an aggravating circumstance.

Influence-peddling

Influence-peddling, ie, public bribery which object is the use, by a public officer, of his or her real or supposed influence in order to obtain an act from a public authority or the abstention of such an act, is punishable under Belgian law (Article 247, §4 of the BCC).

The situation at stake is thus that of a tripartite relationship. This would for instance arise if a contractor were to ask an elected representative to use his or her influence with the mayor of the town so that the latter adopts a decision favourable to the contractor.

It is not required that the public official has actually exercised his or her influence: it is sufficient that an offer or a promise to exercise influence or that an advantage to exercise influence has been solicited or accepted (Belgian Supreme Court, 22 April 2014). The influence sought may go beyond the scope of the function; the person who holds a public office may be prosecuted even if the acts for which he or she is prosecuted are unrelated to his or her public office (Belgian Supreme Court, 14 January 2017).

Illegitimate influence-peddling of foreign public officials is also covered under the provisions on public bribery (Article 250 of the BCC).

Financial Record-keeping

Under the general provisions on forgery, it is a criminal offence, with fraudulent intent or with the intention to cause damage, to conceal or misrepresent the truth in a document that has legal consequences and on which third parties can rely (Article 193 to 196 of the BCC). 

In particular in relation to annual accounts, Article 127 of the Belgian Companies Code (Article 3:44 of the new Belgian Companies and Associations Code) provides for offences and sanctions for those who, with fraudulent intent or with the intention to cause damage, commit forgery in the annual accounts of a company by

  • falsifying or forging documents or signatures;
  • by falsifying agreements, decision, obligations or debt rescheduling arrangements or by subsequently including this false information in the annual accounts; or
  • by adding or falsifying stipulations, declarations or facts that are intended to be included in these documents. It is also a criminal offence to use these forged annual accounts.

Providing false information is punishable under the general criminal provision on fraud, scam and deceit (Article 496 of the BCC), which prohibits the pursuit of a certain benefit by using false names or false capacities or by using tricks to lead one into believing in the existence of false obligations, false powers or false credit, in order to make one expect or fear a successful ending, an accident or any other imaginary event, or otherwise to abuse confidence or credibility. 

Public Officials

Public officials (of any status or rank) are criminally prohibited from abusing their authority, or in the words of the law, to request or order the involvement or use of public power contrary to the application of the law or a royal decree, contrary to the collection of taxes, contrary to a judicial order or contrary to any other governmental order (Article 254 of the BCC). This general provision can be applied in a wide array of cases where public officials exceed or plainly abuse the limits of their powers. 

The Belgian Criminal Code also holds public officials criminally liable for tampering or misappropriating public funds, ie, by ordering or receiving the payment of duties, taxes, levies, monies, income or interest, salaries or wages, where the public official is aware that such a sum is not due (Article 243 of the BCC). A police officer asking and receiving (undue) compensation for allegedly having made "investigation costs" will be guilty of tampering.

Embezzlement of funds by public officials is punishable under Article 240 of the BCC. The law prohibits public officials from embezzling public or private monies, documents that can be used for payment, documents with a financial impact, securities, deeds or movable property, which he or she keeps in his or her capacity of public official. To embezzle funds means that the public official uses the funds for something other than the normal purpose of the funds. The public official must, in other words, have diverted the funds from the normal course of (administrative) procedure or the funds must have been made unavailable instead of being used for their destined purpose. Not only public funds are covered under this offence. It is also explicitly prohibited for public officials to embezzle private monies, as would for example be the case if a notary public (ie, a public official as a notary also provides public services) were to conceal the money which he or she receives on his or her notary account for the sale of a house. As to the required moral element of the offence, the perpetrator must have acted with the intention to grant himself or herself or a third party an advantage, or with the intention of concealing the adverse consequences of an error or shortcoming.

The Belgian Criminal Code also covers the offence of public officials taking an unlawful interest. Article 245 of the BCC prohibits public officials, either directly or through intermediaries or through apparent action, from taking or accepting any interest in the operations, tenders, contracts or works which he or she was supervising or over which he or she was financially responsible. The public official will not be criminally liable if he or she acted openly and was, in the given circumstances, unable to promote his or her private interests. A public health inspector, who agreed to replace the veterinarians that he normally had to supervise for carrying out certain meat inspections and was paid to carry out such inspections himself or herself, would have taken an unlawful interest if he or she had carried out these activities in his or her private (financial) interests (Belgian Supreme Court, judgment of 27 May 1963). 

Intermediaries

The criminal provisions punishing bribery (both public and private; see Articles 246 and 504bis of the BCC) expressly cover the commission of the offence through an intermediary. In the case of bribery, a public official and/or a private individual can thus not escape criminal prosecution by using a third party to propose or accept the bribe. The same applies to the offence of public officials taking an unlawful interest. Article 245 of the BCC expressly anticipates public officials taking a prohibited interest using intermediaries.

Even if the provisions on specific criminal infringements would not explicitly anticipate the use of intermediaries, prosecution may still target other parties than those who directly proposed or accepted the bribe. Belgian criminal law provides for general rules on participation that apply to each of the above-mentioned offences. These rules provide for a sliding scale in the level of participation and the corresponding level of the criminal punishment for this participation. It basically distinguishes between, on the one hand, participants who participate to such a necessary degree that they are considered to be co-offenders (and receive the same punishment as the author of the offence) and, on the other hand, participants who have an accessory role in committing the offence (typically also known as "aiding and abetting" and are subject to a less severe punishment than the author of the offence). While textbooks and legal scholars thus typically distinguish between co-offenders and accomplices, there is, in Belgian prosecutorial practice and case law, an increasing tendency to qualify the level of participation of a person as co-offender rather than accomplice.

There are no specific statutes of limitations applicable to the above-mentioned offences under Belgian law; the general rules apply.

The computation of the applicable limitation period is typically difficult, in particular at the very start of the criminal prosecution, especially as the applicable statute of limitation depends on the (in concreto) qualification and sentence that is eventually given by the judge.

As a rule of thumb, criminal actions for the above-mentioned offences are time-barred after a period of five years after the occurrence of the underlying facts. During that five-year period, the limitation period may be interrupted by any valid act of investigation or prosecution, for a maximum of another five-year period. Without prejudice to potential suspension grounds (such as a recourse before the Supreme Court in some cases), criminal proceedings are thus finally time-barred after ten years.

As a general principle concerning criminal offences, Belgian courts have jurisdiction if the offence is committed in Belgium. An offence is considered to be committed in Belgium if one of its objective constitutive elements can be located on Belgian territory.

The Belgian Supreme Court applied this principle in a judgment of 23 December 1998 with regard to an act of public bribery committed by a French national. The Court held that the Belgian courts could exert jurisdiction over the criminal offence considering that at least one of the objective constitutive elements of the offence was located on Belgian territory. In this case, the French national was accused of bribing two Belgian ministers, active in Brussels, for the purpose of influencing them to enter into an agreement in Belgium with a company owned by the French national for the purchase of equipment destined for the Belgian Air Force. The offence could thus be deemed to be located in Belgium.

If certain conditions are met, the Belgian courts can also have jurisdiction with regard to criminal offences committed on foreign state territory (ie, for which none of the objective constitutive elements can be traced back to Belgian territory). Articles 7, 10, 11 and 12bis of the Preliminary Title of the Belgian Code of Criminal Procedure determine certain general jurisdiction grounds on the basis of which inter alia cases of public and private bribery can be brought before the Belgian courts.

In addition, a specific jurisdictional ground in relation to public bribery is included in Article 10quater of the Preliminary Title of the Belgian Code of Criminal Procedure, which states that Belgian courts will have jurisdiction over a person committing an act of public bribery on foreign state territory:

  • in respect of a person holding a public office in Belgium;
  • in respect of a person holding a public office in a foreign country or in an international public organisation:
  • if that official is Belgian or the international public organisation has its seat in Belgium; or
  • if the offender is Belgian or has his or her main residence in Belgium and if the criminal act is also punishable under the laws of the country where the act is committed (ie, requirement of double incrimination).

In relation to the aforementioned jurisdiction grounds, Article 12 of the Preliminary Title of the Belgian Code of Criminal Procedure determines that prosecution can, in principle, only take place when the suspect is located in Belgium.

Under Belgian law (Article 5 of the BCC), legal entities can be held autonomously criminally liable for their actions. A legal entity can thus commit a criminal offence. As with physical persons, a legal entity can only be held liable if the required material and moral elements are present. For a legal entity, the material element of an offence requires, in accordance with Article 5(1) of the BCC, that there exists an intrinsic link between the crime and the legal entity and that the legal person effectively took the prohibited action or failed to take action which eventually led to the crime. The moral element refers to the fact that the legal entity must be guilty of the offence or, in other words, that the offence is imputable to the legal entity.

As the offence of private bribery targets bribery in the relationship between two private parties, legal entities can be held liable for this offence. Legal entities can also be guilty of active public bribery, if those legal persons (attempt to) bribe a public official.

More controversial is whether legal entities can be prosecuted for offences that must be conducted by public officials (such as passive public bribery). With the law reform on bribery in 1999, the definition of the notion "public official" focused on the nature of the function rather than on (the status of) the person executing the function. Hence, legal scholars believe that, as for "physical" public officials, so-called public-law legal entities can be held criminally liable for the above-mentioned offences. Although it is often a challenge to establish that an offence is truly imputable to a legal entity, legal entities could thus for instance be prosecuted for offences such as private public bribery or embezzlement of public funds.   

In the past, the Belgian Criminal Code explicitly excluded certain public bodies from the scope of Article 5 BCC (and thus from criminal responsibility). This was for example the case for the Belgian federal state, the regions, the communities, the provinces, the municipalities and the public social welfare centres. This exclusion was removed in 2018, but the law nonetheless still contains a limitation as to the sanctions that can be imposed on these public bodies. Such public bodies can indeed only be declared guilty, without any sanctions.

The criminal liability of legal entities does not exclude the criminal liability of physical persons who are the perpetrators of the acts or who have participated in them. 

When a legal entity ceases to exist, that legal entity can – in principle – not be further held criminally liable. Criminal procedures are thus irrevocably discontinued upon closure of liquidation, judicial dissolution or dissolution without liquidation (eg, in the case of a merger or demerger; Article 20 of the Preliminary Title of the Belgian Code of Criminal Procedure). However, in order to avoid legal entities escaping criminal prosecution, the legislator provided that criminal action may nevertheless continue:

  • if the purpose of the liquidation, judicial dissolution or dissolution without liquidation was to escape prosecution;
  • if the investigating magistrate had already formally indicted the legal entity of the criminal offence before it ceased to exist; or
  • when, prior to the loss of legal personality, the legal entity had already been referred to criminal trial before a court on the merits.

Except in these three instances, the new legal entities cannot be held criminally liable for offences committed by the legal entity/ies that disappeared through a merger or acquisition.

Belgian criminal law provides for various general grounds of defences to criminal offences. These defences can either mitigate or entirely exclude criminal liability. Criminal liability will, for instance, be excluded or mitigated in the case of force majeure, physical or moral coercion, legal or factual error, mental disorder, minority, the order of the law or command of the authorities, the state of necessity and lawful self-defence. 

Apart from these general grounds (which will presumably rarely apply in the case of bribery and corruption), Belgian law does not provide for any specific defence. Belgian law does also not provide for any specific obligation to maintain a compliance programme aiming at preventing bribery and influence-peddling, although the presence of a policy for the prevention of criminal behaviour may mitigate the prosecution and conviction risks for the company.

As mentioned under 2.1 Defences, there are no specific defences that apply to the above offences. Hence, there are also no exceptions to these specific defences.

There are no de minimis exceptions for the above-mentioned offences. The (monetary) value of a present or offer is thus, in principle, irrelevant. However, not all gifts or presents will be considered as "bribes".

Note that large corporations usually post on their website their internal policies concerning the maximum value of gifts that can be offered/accepted without any prior authorisation.

No sectors or industries are exempted from the above offences in Belgium.

There are no safe harbour or amnesty programmes in Belgium that are set up specifically for bribery/corruption offences. 

There is no special treatment of bribery/corruption offenders who co-operate with the authorities or the court, but such co-operation may in practice nonetheless lead to a lower penalty.

Belgian criminal law recently adopted the possibility of plea bargains, ie, the procedural possibility for a suspect to acknowledge guilt in exchange for an immediate lesser sentence (Article 216 of the Belgian Code of Criminal Procedure). The public prosecutor may offer persons accused of offences, which would not be (in concreto) punishable by more than five years of imprisonment, the possibility to plead guilty and to agree on a sentence, which can be below the statutory minimum. However, this opportunity can only be seized by the accused during the time of the preliminary investigation (led by the public prosecutor) or in the window after the criminal case was referred to a criminal court and before a judgment is given. In contrast with the criminal settlement, a guilty plea involves the recognition of both civil and criminal liability.

Suspects of criminal offences which do not entail grave violence against the physical integrity of another person and which are (in concreto) punishable by a prison sentence of no more than two years may be offered a criminal settlement (Article 216bis of the Belgian Code of Criminal Procedure). This requires the suspect to pay a certain amount of money, after which he or she can no longer be prosecuted for the facts covered by the settlement. Although a criminal settlement does not involve any recognition of criminal guilt, it entails the recognition of a civil liability and an obligation to compensate the victim(s) of the offences.

Public bribery may, in principle, lead to a prison sentence of six months to 15 years and/or a fine of EUR800 to EUR800,000 for physical persons. For corporate entities, the standard fine may range from EUR24,000 to EUR2,880,000.

The exact range of the penalties depends on the type of the corrupt act, and whether the offence was to:

  • have a public official perform, within the scope of his or her responsibilities, a lawful act which is otherwise not subject to payment;
  • have a public official perform, within the scope of his or her responsibilities, an unlawful act or omission of his or her duties;
  • have a public official commit a crime or malpractice in connection with the performance of his or her duties; and
  • have a public official using his or her true or alleged influence which he or she has by virtue of his or her function to obtain an act of a public authority or administration or the omission of that act.

The penalty will also be higher if the request for bribery was followed by the actual payment of the bribe or if the bribe was eventually accepted (ie, conclusion of corruption agreement).

The concrete penalty also depends on the capacity of the public official that is (attempted to be) bribed. Bribing an arbitrator or a judge, for instance, will lead to higher penalties. If the public official is a police officer or a member of the Public Prosecutor’s Office, the penalties mentioned in the Criminal Code are doubled (which in practice means that a corporate entity bribing a police officer risks a maximum fine of EUR3,200,000). If the public official holds public office in a foreign state or is a public official of an international organisation, the minimum fines of the Criminal Code are tripled, and the maximum fines are multiplied by five.

In addition to prison sentences and fines, other sanctions may comprise debarring the offender from exercising certain rights (eg, holding public offices), confiscating the object, the product and proceeds of the act of bribery, and debarring them from participating in public procurement bids.

Private bribery may lead to a prison sentence of six months to three years and/or a fine of EUR800 to EUR400,000 for physical persons. For corporate entities, the fine may range from EUR24,000 to EUR800,000. The fact that a corrupt agreement was entered into (and the bribery was thus not limited to a mere request or proposal) will be an aggravating circumstance for the assessment of the penalty. Additional sanctions may apply, such as the exclusion from public procurement and the confiscation of the object, product and proceeds of the bribery.

Forgery by private individuals of trade and bank documents, authentic and public documents or any other document in the private domain is punishable with a prison sentence of five to ten years (Article 196 of the BCC). Such forgery must consist of making false signatures, counterfeiting or falsifying documents or signatures, falsifying agreements, orders, obligations or debt-rescheduling arrangements, or adding or falsifying stipulations, statements or facts in documents. Legal entities risk a fine in a range between EUR1,920,000 and EUR5,800,000. The same punishments apply to persons that use the forged documents.

A specific provision in the Belgian Code of Companies applies when the forgery relates to the annual accounts of a company (Article 127 of the Belgian Companies Code/Article 3:44 of the new Belgian Companies and Associations Code). In addition to a prison sentence of five to ten years, physical persons can also be punished with a fine of a minimum of EUR208 and a maximum of EUR16,000. Legal entities risk a fine ranging between EUR1,920,000 and EUR5,800,000.

If a public official is guilty of forgery, he or she can be punished with a prison sentence of ten to 15 years. Specific punishments are applicable to the forgery of attestations.

Abuse of authority by public officials is punishable with a prison sentence of one to five years. If the abuse of authority is eventually complied with, the offender can be punished with a prison sentence of five to ten years. Higher sentences also apply if the public official used violence while abusing his or her authority. The public official may also be debarred from exercising certain rights (eg, holding public office).

A public official found guilty of tampering with or misappropriating funds under Article 243 of the BCC risks a prison sentence of six months to five years and a fine of EUR800 to EUR400,000. The penalties are increased to a prison sentence of five to ten years and a fine of EUR4,000 to EUR800,000 if the public official used violence. The public official may also be debarred from exercising certain rights (eg, holding public office).

The embezzlement of funds (Article 240 of the BCC) is punishable with a prison sentence of five to ten years and a fine of EUR4,000 to EUR800,000. Specific punishments apply to public officials who, maliciously or fraudulently, destroy or remove documents or titles that they hold in their capacity of public official (Articles 241 and 242 of the BCC). 

The offence under Article 245 of the BBC of public officials taking an unlawful interest is punishable with a prison sentence of one to five years and/or a fine between EUR800 and EUR400,000. The public official may also be debarred from holding public office or further executing public services.

The level of discretion of criminal courts is limited by the minimum and maximum sanctions that are provided for by the law. Within those limits, the court is free to determine the appropriate sanction, taking into account the severity of the facts.

The limits on the discretion of the courts may be softened in certain circumstances. First, the court may admit extenuating circumstances or aggravating circumstances, in which case, it can impose sanctions falling outside the legal minimum and maximum. Second, repeat offenders may receive heavier punishments than the legal maximum.

Belgian law does not contain provisions imposing obligations aimed at preventing corruption, for instance by setting up a compliance programme (code of conduct, internal warning system, risk-mapping, training sessions, etc). The presence of any such compliance programme within a company aimed at preventing criminal behaviour may, however, mitigate the prosecution and conviction risks for the company.

Belgian law does not contain general provisions requiring individuals and/or entities to disclose violations of anti-bribery and anti-corruption provisions of which they become aware.

Belgian criminal procedural law requires, however, civil servants to report to the public prosecutor the offences of which they become aware.

Belgian law does not yet contain a general legislation protecting whistle-blowers. This situation will change following the transposition of the EU Directive on the protection of persons reporting on breaches of Union law, adopted on 23 October 2019.

Belgian law, however, contains several limited regimes protecting whistle-blowers in specific contexts. For instance, civil servants of a number of authorities (including the federal administrative authorities and the Flemish Region) are protected when acting as whistle-blowers.

Also, in the wake of EU legislations, the law on the supervision of the financial sector and on financial services allows workers of this sector to report confidentially possible infringements of the financial legislation and be protected in doing so.

Belgian law does not contain any legislation incentivising whistle-blowers specifically to report acts of bribery or corruption.

The Belgian law implementing the Directive on the protection of persons reporting on breaches of Union law, adopted on 23 October 2019, has not been adopted yet.

The specific legislations referred to in 4.3 Protection Afforded to Whistle-blowers can be found respectively in:

  • the Flemish Decree of 7 July 1998 creating the Flemish mediation service;
  • the Law of 15 September 2013 on the reporting of a suspected breach of integrity within a federal administrative authority by a member of its personnel;
  • the Law of 2 August 2002 on the supervision of the financial sector and on financial services.

Acts of bribery and corruption can be subject to civil and/or criminal enforcement.

The authorities in charge of the criminal enforcement of bribery/corruption offences are the criminal investigating authorities, namely public prosecutors and investigating magistrates, with the support of police forces. Within such police forces, a specific group is dedicated to the repression of serious corruption cases (Office Central pour la Répression de la Corruption/Centrale Dienst voor de Bestrijding van Corruptie).

Judicial tribunals and courts rule on the existence of bribery/corruption offences, issue criminal sanctions and rule on civil claims linked to acts of bribery/corruption.

There is no specific provision under Belgian criminal procedural law for the provision of information or documentation to authorities in connection with acts of bribery or corruption. General criminal procedural legislations apply to the investigating authorities referred to in 5.2 Enforcement Body.

There is no specific provision under Belgian criminal procedural law for the application of discretion for mitigation when authorities prosecute acts of bribery or corruption. The investigating authorities and the tribunals and courts nonetheless benefit from the discretion for mitigation generally granted to them under Belgian criminal (procedural) law when enforcing their powers. Such discretion includes, without limitation, the conclusion of criminal settlement agreements (extinction of the public action in exchange for the payment of monies) as well as plea bargains (acknowledgment of criminal liability in exchange for a lesser sentence). See 2.5 Safe Harbour or Amnesty Programme for further details on this point.

See 1.3.2Geographical Reach of Applicable Legislation.

In a case infamously known in Belgium as "Kazakhgate", a Belgian member of parliament, Armand De Decker, was put under formal investigation for alleged influence-peddling and public bribery. Upon the alleged request of French President Nicolas Sarkozy, Mr De Decker tried to speed up the adoption by Parliament of a law that introduced the possibility to conclude a settlement with the public prosecutor in relation to suspected criminal offices. The possibility to conclude a criminal settlement would then have been used by the Uzbek-Belgian businessman Chodiev, who was under criminal investigation by the Belgian authorities. The adoption of such a criminal settlement was a condition for the Kazakh authorities to place orders with various French companies, worth EUR2 billion. Mr De Decker, who asserted that he only acted as Chodiev’s counsel, allegedly received more than EUR700,000 for his apparently limited work in the matter. He passed away in 2019, as a result of which the criminal proceedings against him were terminated.

In 2018, Belgian police forces conducted various searches at some of Belgium’s most important football clubs such as Club Brugge, Anderlecht, Standard de Liège and KV Kortrijk. The searches were conducted in the framework of a criminal investigation on alleged bribery and corruption by football agents, club managers and referees. The criminal investigations are still ongoing.   

Given the limited available (published) case law about both foreign and domestic corrupt practices, no reliable indication can be given on the level of sanctions imposed in practice for acts of bribery/corruption. As mentioned under 3.2 Guidelines Applicable to the Assessment of Penalties, within the range of minimum and maximum limits for penalties and subject to extenuating or aggravating circumstances, a court will determine the appropriate sanction, taking into account the severity of the facts.

The enforcement of anti-bribery and anti-corruption legislation in Belgium has most notably been assessed by the OECD (see https://www.oecd.org/corruption/belgium-oecdanti-briberyconvention.htm) and by the GRECO (https://www.coe.int/en/web/greco/evaluations/belgium).

OECD

In 2013, the OECD Working Group on Bribery considered that fighting foreign bribery was not a priority in Belgium and that, together with the flagrant lack of resources for Belgian law-enforcement authorities, this had resulted in very few foreign bribery investigations and prosecutions.

In 2016, the OECD Working Group on Bribery formulated again serious concerns regarding Belgium’s limited efforts to comply with the OECD Anti-Bribery Convention. The Group considered that Belgium did not sufficiently comply with the Convention: Belgium had only fully implemented five recommendations out of the 30 recommendations made to Belgium in 2013 by the OECD Working Group. The essential modifications then pointed to by the OECD Working Group include the reform of the limitation period applicable to a foreign bribery offence, private-sector whistle-blower protection and the allocation of adequate resources to law enforcement and judicial authorities to prosecute transnational bribery, notably given the important caseload linked to transnational corruption cases involving European officials referred to the Belgian authorities by the European Anti-Fraud Office (OLAF).

GRECO

In the course of its four evaluation rounds of Belgium’s enforcement since 2000, the GRECO has – amongst others – pointed to insufficiencies in relation to the prevention of corruption in public administrations, the transparency of the financing of political parties and the control of electoral spending, and the prevention of corruption of members of parliament, judges and prosecutors. The second interim compliance report for Belgium relating to the fourth evaluation round (on the prevention of corruption of members of parliament, judges and prosecutors) published on 11 September 2019 concludes that, although a number of recommendations have not been (fully) implemented by Belgium, the current level of compliance of Belgium with the recommendations of such fourth round is no longer "globally unsatisfactory".

While there is no expected upcoming legislation exclusively dealing with bribery and corruption in Belgium, a general review of the Belgian Criminal Code has been initiated by the Belgian Minister of Justice. This review should lead to transversal modifications, for instance on the computation and application of penalties. With respect to bribery specifically, in the current new draft Belgian Criminal Code, the conclusion of a corruption agreement would no longer constitute an aggravating circumstance. Also, echoing the GRECO and OECD recommendations, particular acts of bribery would be sanctioned with heavier sentences (eg, transnational public bribery).

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Linklaters regularly acts on the most significant regulatory and criminal investigations and related civil disputes in the world. The firm provides strategic legal advice on sensitive matters involving anti-bribery and corruption, anti-money laundering, business crimes, fraud, export controls and sanctions, and other related issues. With 30 offices across the world, Linklaters is especially well-equipped to address the most challenging cross-border internal investigations, leveraging the firm's ability to draw upon large multi-disciplinary and multi-jurisdictional teams at short notice. The firm's collaborative international teams have represented clients before criminal authorities and regulators across multiple jurisdictions and in a wide variety of fields. Linklaters has excellent insight into relevant prosecutors and authorities. A number of the firm's lawyers have previously held senior positions at national regulators. Recent work involved assisting several Swiss and Luxembourg banks in their defence against criminal charges based on tax fraud. The firm has also advised board members of a listed company in France, Belgium and the US about potential payments to terrorist groups and alleged violations of international embargoes.

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